Effective December 15, 2016, the Regulation and Taxation of Marijuana Act (the “Act”) makes the non-medical recreational possession of marijuana legal for all adults, subject to certain limitations.

The first thing to note is that the Act only applies to adults 21 and over.  Under age 21, the prior law decriminalizing marijuana up to an ounce subjects the offender to a civil monetary penalty, and requires the completion of a mandatory drug awareness program.

The next major limitation to the Act is in amount of marijuana.  As far as cured (smokable) marijuana goes, an adult 21 and up may have up to one ounce on his or her person, and 10 ounces in his or her home (if there is more than an ounce, then it must be secured by a lock).  Additionally, one cannot possess more than 5 grams of “marijuana concentrate.”  The Act also specifically legalizes purchasing those amounts, even from an unauthorized seller.

As for cultivation, the limit is 6 plants for personal use per individual, up to 12 on one premises, and they must not be openly visible to the public, and must be secured.

So, what if an individual is in possession of more marijuana than is allowed?  The Act imposes only minor civil penalties for certain small overages, namely possession of over an ounce but under 2 ounces, and cultivation per person of more than 6 but not more than 12 plants.

The act does not allow an unlicensed person to sell marijuana, but it does allow the (unadvertised) gifting of marijuana up to an ounce (not more than 5 grams of which may be concentrated marijuana).  Currently, until licensed shops open up in 2018, the only legal way to obtain marijuana without a medical marijuana license, is as an unadvertised gift.  Otherwise, the person transferring the marijuana is in violation (although the person receiving the marijuana has still not violated the law).

Brownies and other edibles are also now legal under the Act, up to the 1 ounce/10 ounces limit, and – importantly – the weight of such marijuana products does not include the non-marijuana ingredients, such as sugar, eggs, flour, etc., in such products.

Possession of an “open container” of marijuana (whatever that means – stand by for court decisions . . .) subjects an individual to a civil fine, and of course, operating while under the influence of any intoxicant remains illegal pursuant to General Laws Chapter 90, section 24.  And public smoking of marijuana is subject to a civil fine, except where it is permitted by local law.

It is important to keep in mind that General Laws Chapter 94C was not repealed by the new marijuana law, and so a person can still be charged civilly or criminally in connection with marijuana, which remains a Class D drug in Massachusetts.  As examples, possession of over an ounce of marijuana by a person under 21 is still a crime, as is possession of over 2 ounces by an adult 21 and older, as well as the sale of marijuana without a license to do so.

Expect many court decisions implementing the new law, as well as possible legislative amendments thereto.  License marijuana retail stores are expected to open in Massachusetts in 2018.

Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384


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